U.S. Magistrate Judge David Counts in Midland heard two felony plea agreements Thursday morning and recommended to the U.S. District judge that they be accepted.
After lunch, Judge Counts accepted the pleas of a handful of criminal felony defendants.
In the hours between the two court appearances, he was sworn in as the new U.S. District judge for the Western District of Texas.
The U.S. Senate confirmed Judge Counts to the open federal judgeship on Jan. 11 by a 96-0 vote. U.S. Chief Judge Orlando Garcia gave him the oath of office Thursday at 10:15 a.m.
Judge Counts fills a seat in the Midland-Odessa Division that has been open for three years, since Judge Robert Junell took senior status. The judgeship has an average annual caseload of 1,200 criminal cases and 500 civil disputes.
“The biggest challenge we face is a heavy caseload and pure volume,” Judge Counts told The Texas Lawbook in an interview Friday. “We are currently in the market for a new magistrate judge.”
Judge Counts is also a colonel in the Texas National Guard, where he is assigned to the Judge Advocate General’s office.
Born and raised in Knox City, Texas, Counts was the first in his family to go to law school. His father was a real estate agent and insurance broker. His mother was a homemaker.
Counts received his bachelor of arts from Texas Tech University and his law degree from St. Mary’s University School of Law in 1986. After a short stint practicing at an Austin civil trial law firm, he joined the Travis County District Attorney’s Office.
“I disappointed my father who always wanted me to be a real estate attorney doing deals,” Judge Counts said. “I was always drawn to the courtroom. That’s what I thought real lawyers did – go to trial.”
Ten days after joining the DA’s office, he second-chaired a murder case. The defendant was convicted.
“I fell in love with the law and the courtroom,” he said. “I was fortunate enough to work with and learn from some great lawyers and to be involved in some big cases.”
One of those big cases was the prosecution of serial murderer Kenneth McDuff in 1993. McDuff had been convicted in 1966 of killing three people in California and was sentenced to death. But his death sentence was commuted to life in prison when the Supreme Court handed down Furman v. Georgia in 1972.
For some strange reason, McDuff was paroled in 1989 and he took a job as a gas station attendant in Waco. Prosecutors say he restarted his murderous ways only three days after he was freed, though he evaded authorities for nearly four years.
In 1991, he was charged with the rape and murder of Louisiana resident Colleen Reed, who was in Austin at the time. Travis County District Attorney Ronnie Earle assigned Counts to prosecute the case. McDuff was found guilty and sentenced to death.
In 1993, Counts led the prosecution of Joel Rene Valdez in a highly publicized arrest called “the condom rape case.” Valdez was accused of raping a woman who convinced him to wear a condom.
Counts first heard about the Valdez case while he was serving in the Texas National Guard and his transport plane was refueling in London.
“I saw on the TV news that the grand jury had no-billed the indictment because they thought that she was legally consenting when she had the rapist wear the condom,” he said.
Earle appointed Counts to try again. He did a better job of explaining the mindset of the victim to jurors, including that she worked at a rape crisis center and worried about catching AIDS.
“She is a survivor,” Counts told the jury in closing arguments in May 1993. “Don’t punish her for having a survivor’s instincts.”
He secured a conviction and a 40-year prison sentence.
“I loved being a state and federal prosecutor because I thought I was wearing a white hat,” Judge Counts said. “I can be ridiculously patriotic sometimes.”
For the past eight years, Judge Counts has served as magistrate judge in Midland/Odessa. He was nominated two years ago by President Obama, but the U.S. Senate did not confirm him to the bench. President Trump re-nominated him in 2017.